Healey's suit against the feds may backfire

Thursday

Oct 12, 2017 at 3:00 AMOct 12, 2017 at 6:25 AM

By Cynthia Stead

Surely this is not a partisan matter. It is only a coincidence that Massachusetts Attorney General Maura Healey has decided once again to file suit against the federal government. This time, she is using the cancellation of free birth control as her reason.

There were over half a dozen environmental suits from January to April, and a suit against the Department of Education in June. In September, she filed suits over DACA (Deferred Action for Childhood Arrivals) with 15 other attorneys general. Although the name itself implies a temporary solution by deferring enforcement of federal law, Healey criticized the possibility that it not be permanent. A change in law is being considered which could make it permanent, but since it is a program rather than a law, it is difficult to see her legal basis for action.

Now, in October, she is suing the Trump administration for allowing employers to cite religious and ethical reasons to refuse to provide birth control on employer-sponsored health plans.

It is not clear what effect the directive will have in Massachusetts, whose resources she is using to pursue these cases. There is already a bill in the Legislature called ACCESS (Advancing Contraceptive Coverage and Economic Security in our State), which will mandate free contraception coverage in Massachusetts health plans. Of course, this may lead to other questions. If the state can mandate free contraception coverage, why not other types of maintenance medication like free insulin or free epi-pens?

What is interesting about this sudden concern is that until only 15 years ago, Massachusetts did not allow contraception to be covered on insurance plans at all, let alone mandating free medication. More than a few of the members of the state Legislature now were also making the laws then, and Healey herself was in the attorney general’s office. Their voices on the issue were strangely silent, but that was when the Democratic Party was led by what might be called the Altar Guild wing of the party. It would be interesting to know how many employers did, in fact, refuse to cover contraception even after the Legislature finally allowed it, and before the federal government mandated it.

I happen to be pro-choice. But, in the first column I wrote 11 years ago, I said that government involvement in reproductive issues should be limited to safety and sanitation. The pro-life point of view I respect the most restricts itself to education about pregnancy, and persuasion to choose to have a child, rather than trying to legislate enforcement. I understood the argument about contraception costs, since I had to pay out of pocket as did most women in Massachusetts due to the anti-contraception laws for all of my reproductive life. I agreed that nonprofit organizations like Planned Parenthood were valuable for helping young women afford contraception, although the cost is not especially high. They fulfilled the highest purpose of a nonprofit, which is to supplement other services offered via voluntary donations from those who wish to help, rather than coerced support from taxation.

But by dragging this deeply personal decision into the partisan arena, the people hurt are the young women involved. As the Democrats famously crowed after their legislative victories, elections have consequences. The consequence now is that they lost an election and somehow feel it is immoral to roll back their changes. But the voters felt those changes were equally immoral to make, and are now imposing their vision instead. This is precisely why the increasing federalization of social issues is so dangerous. By seeking to impose their vision on places they saw as benighted and backwards, they have only succeeded in handing tools to their ideological opponents to impose their vision instead.

We need to return such choices to the states. We could decide for ourselves as a commonwealth. This will likely mean different choices in different places, but why is that worse than a national whipsawing back and forth? The federal government was meant to be weaker than the collective states, partly to allow the states to be what Justice Louis Brandeis called "laboratories of democracy" so “a state may, if its citizens choose, serve as a laboratory, and try novel social and economic experiments without risk to the rest of the country.”

Healey is actually filing suit to refuse to allow states to make their own choices, and the eventual result in her contraception suit may not be what she would like, given the victory by the Little Sisters of the Poor in the recent Supreme Court decision. Perhaps that is why she has announced yet another lawsuit, this time over Equifax. Sooner or later, she might win one.

— Cynthia Stead of Dennis may be emailed at cestead@gmail.com.

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